Opinion
A124914
02-23-2012
THE PEOPLE, Plaintiff and Respondent, v. QUINDALE DAVID POWELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC061488A)
Quindale David Powell appeals from a judgment of conviction upon a jury verdict finding him guilty of first degree murder (Pen. Code, §187, subd. (a)) with the allegation that he personally used a firearm causing death (§ 12022.53, subd. (d)), and that he was a felon in possession of a firearm (§ 12021, subd. (a)(1)). He contends that the trial court abused its discretion in admitting his mother's statement that he shot the victim. He also argues that the court erred in its instructions to the jury. We affirm.
All further statutory references are to the Penal Code.
FACTS
The parties stipulated that a 911 call was received on February 25, 2006 at 10:30 p.m. reporting that shots were fired approximately a minute prior. The police responded to the call to the vicinity of Woodland Avenue and Newall Road in East Palo Alto. They found DeShawn Stubbs laying face down with his head facing the driveway and his feet pointing out in the street. There was a pool of blood developing underneath him. Justin Turner, defendant's cousin, was leaning over the body. Paramedics also responded to the scene and found Stubbs lying in the street. They rolled Stubbs over onto his back, and found that he had no pulse and was not breathing. They confirmed that he was dead at 10:40 p.m. Stubbs had suffered three gunshot wounds to his back and two to his chest. Stubbs did not have a weapon. The police found three .40 caliber casings within 13 to 15 feet of Stubbs. Another casing was found next to Stubbs. They also found a gray jacket about two feet to the right of Stubbs' head and a black jacket approximately five feet away from him.
Josef Hernandez, who was 11 years old on February 25, 2006, testified that he remembered that day as the date Stubbs was murdered. At that time, he was living in an apartment at 1761 Woodland. Stubbs also lived in the same apartment building, and had celebrated his 24th birthday that day at a party in his apartment. Josef knew Stubbs because he saw him around a lot, spent time with him in his truck, and also played video games with him. On the evening of the incident, Josef returned home after going to the movies, to find Stubbs in front of the apartment building arguing with defendant. Stubbs was angry. Defendant was arguing with Stubbs and both were screaming and yelling. Defendant yelled, "youz [sic] a bitch ass nigger." They were both in the street, moving around talking "smack" back and forth. Josef was about two feet away from Stubbs during the argument and could see defendant clearly. Defendant was wearing a black 650 hoodiewith green lettering, and had a hat over his afro. Defendant turned and walked toward a crowd of people standing near his car. Josef, in turn, was walking with Stubbs towards Stubbs' car. Defendant and Stubbs continued to yell at each other.
A hoodie is a sweatshirt with a hood; a 650 hoodie is a 650 East Palo Alto sweatshirt.
The car belonged to defendant's girlfriend, Keauna Routt.
Defendant reached into the rear passenger door of his car. Defendant and Stubbs then walked back into the street. Defendant said, "Youz a bitch ass nigger; come to my side of the street, and I'll take you out the game." He appeared angry and had his hands in the pockets of his sweatshirt. Stubbs ran toward defendant, taking off his black leather jacket and dropping it on the street. He approached defendant with his fists balled, like he was going to fight. Defendant pulled a gun out of his sweatshirt pocket, Stubbs suddenly turned away like he was about to run, and defendant started shooting at him. Stubbs fell to the ground. Defendant shot Stubbs at least two more times and then ran to the black car.
Defendant got into the passenger side of the car and it sped away. Turner went to Stubbs and held him.
Stubbs died from multiple gunshot wounds. The wounds were consistent with the first gunshot hitting Stubbs as he turned, the second and third shot hitting him as he continued to turn and fall, and a final shot fired when Stubbs was already on the ground. One bullet that had entered Stubbs' left buttock area was recovered during the autopsy. Another bullet was collected at the scene.
A criminalist, who was a firearms specialist, testified that the casings and bullets were fired from a Glock pistol. He opined that the four cartridges were fired from the same Glock gun. He also examined the bullet recovered from Stubbs' body as well as one recovered at the scene. The bullets were also consistent with being fired with a Glock gun.
Josef identified defendant as the shooter in a photo lineup, a live lineup, and at trial. He recognized defendant because he had seen him at least six or seven times before, and because he saw his face in the flash of the gun at the time of the shooting. He was 100 percent positive that defendant shot Stubbs. Josef had also seen defendant with a gun in the past.
Adel Hernandez, was 15 years old at the time of the shooting and lived in the same apartment building as Josef and Stubbs. Adel positively identified defendant as the shooter at trial. She also identified defendant as the shooter in a photographic lineup. She recognized defendant because she had seen him around the apartment area several times.
Adel was not related to Josef.
Pauline Hutchens, a neighbor who lived at 1735 Woodland Avenue in East Palo Alto, was asleep on February 25, 2006, when she was awakened by a loud commotion in the driveway between 5 Newell and 15 Newell. She looked out her window and saw a dark-colored sedan blocking the driveway on Newell. She heard the argument between two males in the street escalating and then heard three to four gunshots. Next, she saw someone run and get into the sedan parked in the driveway which sped away. Hutchens then saw Christine Wallace, defendant's mother, come out of the apartment building and run up and down the driveway on Newell Road acting frantic.
Wallace testified that she had just returned home from the 7-Eleven store on the corner, less than a block away, when she saw a body lying on the street. She did not hear any gunshots. Wallace, however, explained that she might have told the police that she heard gunshots as she was driving down the street. She saw Turner leaning over the body. She did not see defendant or Keauna Routt, defendant's girlfriend.
Michael Daniels testified that he was living at 5 Newell Street at the time of the murder and that he was at home at approximately 10:30 p.m. when he heard gunshots. He subsequently went outside and saw Turner, Quentin Powell, and Wallace. He heard Quentin say, "I don't give a fuck that he's dead." He returned to his apartment and a few minutes later, Wallace arrived. She was hysterical and said, "Quindale just shot that boy."
Quentin Powell, defendant's brother, was 16 at the time of the murder. At that time, he was living with his uncle and his cousin, Turner, at an apartment at 5 Newell Road. On the day of the murder, they attended a barbecue across the street where Quentin had an argument with Stubbs. Stubbs told Quentin, "Shut up before I slap you and embarrass you in front of all these people." Quentin then left. He returned to his uncle's apartment and called defendant. When his brother did not answer his phone, he called Routt and told her to tell defendant to call him. Defendant called Quentin back a few minutes later and Quentin told him that he had an argument with Stubbs and that Stubbs threatened him.
Routt, defendant's girlfriend, testified that she attended a party at Homer Harris's house on the afternoon of February 25, 2006. Defendant was there. That evening at 10:08, Routt received a cell phone call from Quentin, who was looking for defendant.Quentin also told Routt that he had been in an argument with someone. Routt then called defendant at a cell number ending in 1411. She did not remember when she left the party but thought that she left in her car and drove home to Sunnyvale. She, however, told the police on March 1, 2006 that she and defendant left the party together and went to Sunnyvale. She later changed her story when she found out that cell phone records showed that defendant was not in Sunnyvale that evening.
Routt testified under a grant of immunity pursuant to section 1324.
Records from Metro PCS and Sprint Nextel Communications of the calls made and received and the respective cell phone tower information from several cell phones were admitted into evidence. Routt acknowledged that her cell phone number ended in 1638.
The cell phone with that number was found in Routt's car at the time of defendant's arrest. Routt testified that defendant used that cell phone number up until the time he was arrested. Elaine Watts, another of defendant's girlfriends, testified that defendant used multiple cell phones.
Harris testified that defendant and Routt were at a birthday party for Harris's nephew on February 25, 2006. Defendant probably had a little bit to drink and smoked marijuana. That evening, they left the party to go to King's Inn where Lavell Russell, a friend, was going to do a rap performance. Two groups of cars left the party to attend the event, with defendant leaving in the first group and riding with Russell. Harris left in the second group, ten to twenty minutes later. On the way to Fremont, Harris testified that he saw the police stop one of the cars in the caravan. Lavar Reid was arrested.
Russell also attended the party at Harris's house. He left the party to go to King's Inn and arrived there at 10:00 p.m. He acknowledged that he told the police in March, 2006, and the defense investigator in April, 2006 that he had no idea what time he had arrived at King's Inn. Russell testified that he and defendant left Harris's house at between 9:15 and 9:30 p.m. He testified that the police stopped a car in the second caravan. He denied telling the police that he had seen the police make the stop on his way to Fremont.
Officer Jeff Lawrence testified that he effected a traffic stop on a car on February 25, 2006 at 10:53 p.m. on eastbound Highway 84 and arrested Lavar Reid on a misdemeanor warrant.
On March 1, 2006, the police stopped a vehicle being driven by Routt; defendant was in the back seat talking on a cell phone. Defendant and Routt were arrested. The police found no weapons on them or in the car. They found one cell phone on the floorboard of the rear passenger side seat and another in the driver's seat.
Records from Metro PCS and Sprint Nextal Communications of the calls made and received and the respective cell phone tower information from several cell phones were admitted into evidence. These records included Routt's cell phone number 1638, and the numbers ending in 1411 and 0011 which were found in Routt's car. The address book of the 0011 cell phone included virtually all of the numbers found in the 1411 cell phone with the exception of one number. Both phones had Wallace's cell phone number with the address book in both phones listing the number as belonging to "Momm."
Detective Jeff Liu investigated the murder. Based on information he obtained from the cell phone companies, he was able to determine which cell phone towers were being utilized during various cell phone calls that were made on the evening of the murder. Those records showed that calls were made or received on the cell phone number ending in 0011 at 10:08, 10:09 and 10:10 p.m. on the evening of the murder and that the cell phone was hitting off the tower located at 1950 University Avenue, in the area of Harris's house. Liu estimated that the murder occurred approximately between 10:28 and 10:30 p.m. The next call on the 0011 cell phone was made at 10:50 p.m. and the cell phone was then hitting off the tower located at 2415 University Avenue in the direction heading towards the Dumbarton Bridge. A further call was made on the 0011 number at 10:53 p.m. and was hitting off the cell phone tower located just off State Route 84 and subsequently hit the tower located about .8 miles from the King's Inn in Fremont at 11:31 and 11:59 p.m. and then a call was made utilizing an East Palo Alto cell phone tower at approximately 1:54 a.m. Liu therefore concluded that the person using the 0011 phone had it in the area of Harris's house and the crime scene and eventually went over the Dumbarton Bridge at 10:53 p.m. and returned to East Palo Alto at 1:54 a.m. Similarly, calls were made or received on the 1411 cell phone at 10:07 and 10:09 p.m. that evening that registered against the cell phone tower near Harris's house. The next calls on the 1411 line were made or received at 10:51 and 10:54 p.m., and hit the cell phone tower near the Dumbarton Bridge. Two further calls were made at 10:55 and 10:56 p.m. and registered on the cell phone tower on the east side of the Dumbarton Bridge. Subsequently, there were calls made from 11:22 p.m. to 12:22 a.m. that registered on the cell phone tower near the King's Inn. Cell phone records then showed that the 1411 cell phone made or received calls returning from the King's Inn to Harris's house at between 1:44 a.m. and 2:08 a.m.
Liu testified that he interviewed Harris on April 10, 2006 and that Harris said he was drunk and high on the day of the murder and had no idea what time they left his house to go to the King's Inn. Harris said that there was only one caravan of cars and that Reid was in the caravan and was stopped by police. Liu also interviewed Russell who said he did not know what time they went to Fremont that night and said that they all travelled in a caravan of four to five cars to get to Fremont. No mention was made of two caravans. Liu timed the drive to the murder scene from Harris's house and determined that it took 3 minutes and 41 seconds on a weekend evening.
Liu interviewed defendant who told him that he was at the King's Inn in Fremont at the time of the murder. Defendant told Liu that he left the party at Harris's house at 9:00 p.m., that it was a 30-minute car ride to Fremont, and that after waiting in line, he got into the club at about 10:00 or 10:30 p.m. and stayed until 2:00 a.m. Defendant told Liu that he probably was selected in the photographic lineup because of his brother even though Liu had not mentioned anything about defendant's brother. He denied owning any guns or cell phones. When interviewed, Quentin told the police that defendant had guns.
It was stipulated that defendant was a person prohibited by law from owning, purchasing, receiving, or possessing a firearm.
In defense, defendant sought to show that he was misidentified as the perpetrator, and alternatively, that he acted in self-defense by demonstrating that Stubbs had a reputation for violence. On the latter defense, he called several witnesses. Alicia Avalos, the mother of Stubbs's girlfriend, testified about a fight Stubbs had with a guest in her home. She was cut with a broken bottle when she tried to separate the two. Stubbs lived at Avalos's house at times so she sought a restraining order against him because her daughter feared that her children would be taken away if she did not obtain a restraining order. Avalos also thought she was at risk of losing her Section 8 housing if Stubbs lived with her.
Guadalupe Serna, Avalos's daughter, testified that on the day her mother was injured, she awoke when she heard some commotion in the adjoining room. She called the police. The police told her that if she did not get a restraining order against Stubbs, her children would be taken away.
Gerald Cuellar, a court interpreter, testified that he assisted as an interpreter during an interview of Avalos at her apartment. When interviewed, Avalos said that she intervened in the fight between Stubbs and one of her daughter's friends and that Stubbs cut her in her arm with a broken glass in the process. She did not know whether Stubbs cut her on purpose or if it was an accident.
John Cabral worked as a security guard for several apartment buildings on Newell Road in 2006. He was familiar with Stubbs who had threatened him with a firearm three or four times over a couple of months in 2005 or 2006. He informally reported the incidents to the police. Cabral testified that Stubbs threatened him and called him obscene names. Cabral opined that Stubbs's reputation in the neighborhood was that of a trouble maker and as someone who made threats.
He suffered a nervous breakdown in 2008 and was under psychiatric care and taking Risperdal at the time of trial.
Detective Brackett testified that he interviewed Adel Hernandez after the murder and she said that she did not see the actual shooting. But she did see defendant pull what appeared to be a gun from his sweatshirt front pocket and point it at Stubbs. She turned away because she did not think he would shoot because everybody was scared of Stubbs.
For his misidentification theory, defendant relied on the testimony of Geoffrey Loftus, an expert in perception and memory. Loftus testified about circumstances affecting memory and the reliability of eyewitness identification. He opined that circumstances involving the environment at the time of perception including the distance from the event, stress the witness is experiencing, the witness's focus, the length of time between the event and the time the witness is called upon to recollect it, and the procedure and questioning used to obtain the witness' report all affect the witness's memory and can result in the memory being incomplete, systematically biased, and inaccurate.
DISCUSSION
1. Admission of Wallace's statement
Defendant contends that the trial court erred in admitting Wallace's statement that "Quindale just shot that boy" because there was no foundation for her knowledge of that fact. "To testify, a witness must have personal knowledge of the subject of the testimony, i.e., 'a present recollection of an impression derived from the exercise of the witness' own senses.' (Cal. Law Revision Com. com., reprinted at 29B pt. 2 West's Ann. Evid. Code (1995 ed.) foll. § 702, p. 300; Evid. Code, § 702, subd. (a).) In order to have personal knowledge, a witness must have the capacity to perceive and recollect. [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 356.) The trial court " 'may exclude the testimony of a witness for lack of personal knowledge only if no jury could reasonably find that he [or she] has such knowledge.' " (People v. Anderson (2001) 25 Cal.4th 543, 573.) If there is evidence that the witness has the capacity to perceive and to recollect, " 'the determination whether he [or she] in fact perceived and does recollect is left to the trier of fact. [Citation.]' [Citations.]" (Id. at pp. 573-574.)
Here, the evidence was in conflict as to Wallace's location at the time of the murder. She testified that she was less than a block away at the time of the murder, that she may have heard the gunshots, that she saw Turner leaning over Stubbs' body but that she did not see defendant. Other witnesses placed Wallace at the scene at the time of the murder. Josef testified that she was there with Quentin "outside" when defendant was arguing with Stubbs. Adel told the police that Wallace was outside before defendant fled from the scene and that Wallace told Quentin to "get the fuck in the house." Hutchens also placed Wallace at the scene right after defendant fled. She testified that after the shooting, she saw Wallace come out of the stairwell of the apartment on Newell Road and she was running up and down the driveway acting frantic. She testified that Wallace did not arrive at the scene in a vehicle. Daniels also saw Wallace outside after the murder before she returned to his apartment and made the incriminating statement. Finally, Quentin told the police that he heard about the shooting from his mother. Hence, there was evidence from which the court could have concluded that Wallace had personal knowledge of defendant's fight with Stubbs and the shooting and that there was a foundation for her statement to Daniels.
Even if, however, the court erred in admitting the evidence, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The evidence that defendant committed the murder was overwhelming. Not only were there eyewitnesses who testified that defendant shot Stubbs, the cell phone records provided additional evidence placing defendant and his girlfriend in the area at the time of the shooting, and also showing that defendant thereafter fled the scene. The error, if any, in admitting the evidence of Wallace's statement, thus, was harmless.
2. Mutual combat and self-defense instructions
The court instructed the jury on mutual combat in the language of CALCRIM No. 3471 as follows: "A person who engages in mutual combat or who is the first one to use physical force has a right to [use] self-defense only if: [¶] 1. He actually and in good faith tries to stop fighting; [¶]AND [¶] 2. He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting; [and] [¶] 3. He gives his opponent a chance to stop fighting. [¶] If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight."
Relying on People v. Ross (2007) 155 Cal.App.4th 1033, defendant argues that there was no substantial evidence to support the mutual combat instruction. In Ross, the court explained that " 'mutual combat' consists of fighting by mutual intention or consent, as most clearly reflected in an express or implied agreement to fight . . . . [T]here must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose." (Id. at pp. 1046-1047.) The Ross court held that the trial court erred in giving the mutual combat instruction without evidence to support it. (Id. at pp. 1053-1054.) The mutual combat instruction in Ross, however, was in the language of CALJIC NO. 5.56 and did not include the disjunctive language of CALCRIM No. 3471, which applies when a person is engaged in mutual combat or is the initial aggressor. (Id. at p. 1042 & fn. 9; see CALCRIM No. 3471.)
Here, there was substantial evidence of an agreement to fight, and that defendant was the first to use physical force. The evidence showed that defendant and Stubbs argued calling each other names and talking "smack" back and forth and then retreated to their cars. After going to their respective cars, they returned to the street and continued with the argument with defendant threatening to take Stubbs "out [of] the game." Stubbs, in turn, had taken off his jacket, and returned to the street with his fists balled. Thus, there was evidence that both defendant and Stubbs consented or intended to fight before defendant chose to use physical force.
Even if the instruction was inapplicable under the facts, the court's error in giving it was harmless. "[G]iving an irrelevant or inapplicable instruction is generally ' "only a technical error which does not constitute ground for reversal." ' [Citation.]" (People v. Cross (2008) 45 Cal.4th 58, 67.) When a court errs by giving a correct instruction that has no application to the facts of the case, the error "does not appear to be of federal constitutional dimension . . . . [¶] The error is therefore one of state law subject to the traditional Watson test (People v. Watson (1956) 46 Cal.2d 818, 836) . . . Under Watson, reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred." (People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130.)
Defendant's contention that the court erred in not defining mutual combat is without merit. The parties argued to the jury that the mutual combat theory did not apply to the case, and in any event, even if the jury had considered the theory, it necessarily would have found defendant to have been the initial aggressor under CALCRIM No. 3471 and that he consequently did not have the right to self-defense.
Here, the jury was instructed, pursuant to CALCRIM No. 200 that "[s]ome of the instructions may not apply depending on your findings about the facts of this case . . . ." And, both the prosecutor and defense counsel argued that this was not a mutual combat case. Accordingly, even if the mutual combat instruction did not apply, we must presume that the jury properly disregarded inapplicable instructions. (People v. Chavez (1958) 50 Cal.2d 778, 790.)
Defendant also contends that the court erred in giving CALCRIM No. 3472 that "[a] person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." He argues that the instruction undermined his theory of self-defense.
In closing argument, defense counsel argued, in the alternative, that defendant either was misidentified as the perpetrator, or that he acted in self-defense, either as a complete defense or that the offense was manslaughter based on unreasonable self-defense or provocation. Given defendant's own theories of his defense, we can perceive of no error in the court's giving of CALCRIM. No. 3472 or in instructing on imperfect self-defense, that defendant unreasonably but actually was convinced of the need to use deadly force to defend himself. (See People v. Flannel (1979) 25 Cal.3d 668, 681-682.) These instructions were correct statements of the law and were applicable to the case based on the evidence.
The court instructed the jury on imperfect self-defense in the language of CALCRIM No. 571 as follows: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. If you conclude that the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. [¶] The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable. The defendant acted in imperfect self-defense if, one, the defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury, and two, the defendant actually believed that the immediate use of deadly force was necessary to defend against the danger, but three, at least one of those beliefs was unreasonable."
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3. Special instruction on voluntary manslaughter
Upon the prosecutor's request, the jury was instructed that "[a] defendant who provokes a physical encounter by rude challenges to another person to fight coupled with threats of violence to that person is not entitled to claim that he was provoked into using deadly force when the challenged person responds without the apparent or actual use of deadly force." This instruction was based on People v. Johnston (2003) 113 Cal.App.4th 1299, 1313 (Johnston). In Johnston, the court held that a defendant cannot claim provocation by the victim to reduce the crime of second degree murder to voluntary manslaughter where the defendant was the one who provoked the fight. (Id. at pp. 1312-1314.) Citing Wharton's Criminal Law, the court explained " 'If the defendant causes the victim to commit an act which the defendant could claim provoked him, he cannot kill the victim and claim that he was provoked. In such case, he is deemed to have acted with malice and would be guilty of murder. Thus, a defendant is guilty of murder when he arms himself and plans to insult the victim and then kill him if the victim strikes him in resentment over the insult.' (2 Wharton's Criminal Law (15th ed. 1994) § 157, p. 352.)" (Johnston, supra, 113 Cal.App.4th at p. 1312.)
Johnston involved facts analogous to those here. There, the defendant went to his ex-girlfriend's home and pounded on the door, walls, and windows, demanding to see her. (Johnston, supra, 113 Cal.App.4th at p. 1302.) Her mother emerged and told defendant to leave but defendant continued to shout obscenities, threatened to kill the entire family, and refused to leave. (Id. at p. 1304.) He repeatedly challenged the ex-girlfriend's brothers to come out and fight. (Ibid.) Eventually one of her brothers came out, unarmed, and began a physical fight with defendant. During the fight, defendant took out a knife and repeatedly stabbed the brother, killing him. (Id. at p. 1305.) The court of appeal held that the defendant, having provoked the fight, could not be heard to assert provocation by the victim such that a reasonable person would have been provoked to resort to deadly force. (Id. at pp. 1312-1314.)
Here, as well, the evidence showed that defendant provoked Stubbs to fight by challenging him to come to his side of the street and threatening to take Stubbs "out [of] the game." Only defendant approached the fight with deadly force. The evidence thus supported the special instruction that defendant could not claim that Stubbs provoked him to use deadly force. The special instruction was a correct statement of the law. (Johnston, supra, 113 Cal.App.4th at pp. 1312-1314.) No error appears.
DISPOSITION
The judgment is affirmed.
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RIVERA, J.
We concur:
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RUVOLO, P. J.
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SEPULVEDA, J.